Dr Hugh Barr

Will the 2011 MACA Act now start stealing our beaches?

It is now over six years since the racist Marine and Coastal Area (MACA for short) Act came into force. So far.it has proved very difficult for Maori tribal groups to obtain ownership of the foreshore and seabed, with only one highly unusual case qualifying so far.

In the MACA Act, the main type of privatised title is called Customary Marine Title (CMT). To qualify, a tribal group must show that it has “exclusively used and occupied the coastal area from 1840 to the present day, without substantial interruption” (S 58 of the MACA Act). It gives major private property rights to any tribal group that meets this very stringent condition.

There is also a second type of tribal right, a Protected Customary Right (PCR). This also has to have been exercised since 1840, and continue to be exercised in accordance with tikanga (Maori customary practices). An applicant group does not need to have an interest in land, as is normally required for CMT. An example of a PCR, is collecting hangi stones from the beach, selling gravel, etc. and not being subject to RMA requirements or payments. (See S 51).

There are two different processes that a tribal group can take to qualify. The first is secret negotiations with the Crown, (S 95) which, being secret is much cheaper in legal expenses and so was usually chosen. However the Crown does not have to accept an applicant, and, of course, must not accept them if they do not meet the required conditions. So far, the Crown has not recommended any claims as meeting the conditions, and has dismissed a significant number, showing it had serious doubts about cases it has investigated.

Alternatively the tribal group can go to the Wellington High Court (S 100). They must notify their claim publicly in a local newspaper, giving other interested parties the ability to register and oppose the claim. My Council CORANZ, the Council of Outdoor Recreation Associations of NZ, has become a party to a number of claims in this way, something we cannot do with Crown Secret negotiations.

All claims, once accepted, have to be notified, to the Ministry of Justice, as any developer wanting a resource consent in a Claim area, has to discuss it with the claimants. If the claim is proven, then the Resource Consent applicant has to gain the approval of the tribe, just as if its marine and coastal area were private land. Thus the tribe can veto any RMA consent, allowing the tribal group to be paid for allowing the consent.

But, the major danger of CMT to the public, is that so-called “sacred” areas, called wahi tapu areas, (S 78) can be declared, where the public is forbidden to go, with trespass penalties of up to $5,000 for every trespass. (S 81 Compliance). S 80 (Wardens and Fishery Officers) shows that, in spite of talking about wahi tapu as “sacred areas” S 80 (Wardens and Fishery areas) shows that a major use for wahi tapu will be as private fishing areas for the tribe, with Fisheries Officers giving up their time to help patrol them. Local Authorities also have to discourage public use (S 81 (1).) and weigh in against their own ratepayers, an unhelpful conflict of interest because the Act forces them to be policemen..

The availability of bulldozers to build and maintain roads after the Second World War encouraged urban people to go to the beach. Baches appeared all over the coasts where fishing, boating, surfing, yachting, diving, swimming, or other relaxation was available. Because New Zealand’s coasts are so attractive, having a bach at the beach has become the norm. City dwellers greatly outnumber locals during the holidays in Northland, Coromandel, the Bay of Plenty, East Coast, Hawke’s Bay, Wairarapa Coast, Marlborough Sounds, Nelson, Golden Bay, Canterbury, Southland, etc.

The beaches have certainly not been “exclusive” to tribal groups now for 50 to 60 years, and probably much longer, given excursion trains used to take people on excursions to the beach, e.g. Plimmerton, in the 1920s. One of Katherine Mansfield’s greatest short stories was “At the Bay” first published in 1922.

“Gold Rush” of last Minute Claims:

The MACA Act required all claims to be filed six years after the start of the Act namely by 3rd April 2017 This has led to an avalanche of tribal claims being advertised now. You may have seen them in the Public Notices of your city or regional daily. Already in excess of 100 have been advertised in the last month, with 30 in the NZ Herald last Saturday (29th April). There are lots more still to appear, according to the Justice Department.

Most tribal claims are highly optimistic, almost invariably claiming out to 12 nautical miles (22 km), from the shore, i.e the limits of the territorial sea. This, even though the territorial sea only went out 3 nautical miles in 1840, and only went out to 12 nautical miles in 1977, as a result of New Zealand playing an important role in the United Nations Convention on the law of the Sea (UNCLOS) for all its citizens.

No-one will go out to the edge of the territorial sea, when research shows that most of the fish species iwi eat are much nearer to shore, or on the foreshore..

“Gold Rush” on with last-minute claims

An expiry date of Monday 3 April 2017 was set in the Act, for lodging all claims. That is, six years after the Act came into force. However, since 3rd April, it has led to a flood of claims being registered with the Wellington High Court, and with secret Crown Negotiation, based on claims registered with the Court by 3rd April.

This massive filing is clearly being orchestrated by the tribal elites. Justice Department staff reckon the number of last-minute claims is well over 150. These have been advertised in vast numbers in the public notices in regional and local papers. On Saturday 29th April for instance, there were about 30 different ads in the NZ Herald, and 10 in other daily papers, including four in the Dominion-Post. These last-minute claims are seriously over-stretching the resources of the Wellington High Court.

Many of these claims overlap with other claims, as has already happened with a number of claims lodged before 3rd April. It, of course is not possible for two tribal groups to “exclusively use and occupy” the same area of coast. The claims also make expansive and sometimes laughable claims for PCRs. Almost all the coasts of NZ have been claimed two or three times over, including remote offshore island that no tribe has ever occupied.

Many tribal groups with claims under the Secret Crown Negotiation process, believe their claims will not succeed, so are swapping horses in mid-stream. Today (3 May) Maanu Paul claimed the whole of the North Island coast out to 12 nm. This highlights the level of delirium around. Likewise Ngai Tahu have claimed all the MACA over the four fifths of the South Island that is in their region.

The High Court process allows members of the public to join these proceedings. However, there is no limit to the amount of money that tribal groups are given by the National Government – over $13 million – to pay lawyers and others to argue their claims, while non-tribal participants such as CORANZ have to pay their own way.

The high risk now is that claims with no public interest opponent will be prime targets for the tribal groups and their lawyers to pull the wool over judges inexperienced about this type of claim.

PS: This link to the Justice Department website lists the claims being secretly negotiated with the Crown currently.

For more information, you can contact Hugh Barr, Secretary of CORANZ, HERE.